ACCO BRANDS CORPORATION PERFORMANCE STOCK UNIT AWARD AGREEMENT
Exhibit
99.4
ACCO
BRANDS CORPORATION
2005
LONG-TERM INCENTIVE PLAN
THIS
AGREEMENT is made and entered into this and effective _____________, 20__ (the
“Grant
Date”)
by and
between ACCO Brands Corporation, a Delaware corporation (collectively with
all
Subsidiaries, the “Company”)
and
____________________ (“Grantee”).
WHEREAS,
Grantee is a Key Employee of the Company and in compensation for Grantee’s
services, the Board deems it advisable to award to Grantee an Award of
Performance Stock Units representing shares of the Company’s Common Stock,
pursuant to the ACCO Brands Corporation 2005 Long-Term Incentive Plan
(“Plan”),
which
may be earned by Grantee upon the satisfaction of performance objectives, as
set
forth herein.
NOW
THEREFORE, subject to the terms and conditions set forth herein:
1. Plan
Governs; Capitalized Terms.
This
Agreement is made pursuant to the Plan, and the terms of the Plan are
incorporated into this Agreement, except as otherwise specifically stated
herein. Capitalized terms used in this Agreement that are not defined in this
Agreement shall have the meanings as used or defined in the Plan. References
in
this Agreement to any specific Plan provision shall not be construed as limiting
the applicability of any other Plan provision.
2. Award
of Performance Stock Units.
The
Company hereby awards to Grantee on the Grant Date an Award of ______________
Performance Stock Units. Each Performance Stock Unit constitutes an unfunded
and
unsecured promise of the Company to deliver (or cause to be delivered) to
Grantee, subject to the terms and conditions of this Agreement, one (1) share
of
Common Stock. Each Performance Stock Unit shall be earned and vested in
accordance with Section
3
and
shall be payable to Grantee in accordance with Section
4,
below.
The Company shall hold the Performance Stock Units in book-entry form. The
Grantee shall have no direct or secured claim in any specific assets of the
Company or the shares of Common Stock to be issued to Grantee under Section
4 hereof,
and shall have the status of a general unsecured creditor of the Company. THIS
AWARD IS CONDITIONED ON GRANTEE SIGNING THIS AGREEMENT AND RETURNING IT TO
THE
COMPANY BY _____________, 20__, AND IS SUBJECT TO ALL TERMS, CONDITIONS AND
PROVISIONS OF THE PLAN AND THIS AGREEMENT, WHICH GRANTEE ACCEPTS UPON SIGNING
AND DELIVERING THIS AGREEMENT TO THE COMPANY.
3. Vesting.
(a) Generally.
The
period for the attainment of the performance objectives set forth on Schedule
I
hereto shall commence on ________________ and end on ________________
(“Performance
Period”).
Subject to the acceleration of the vesting of the Performance Stock Units
pursuant to Section
3(b),
3(d)
and
3(e)
below,
or the forfeiture and termination of the Performance Stock Units pursuant
to Section
3(c)
below,
the Performance Stock Units shall be wholly or partially earned and vested
and
become nonforfeitable, to the extent of the satisfaction
of
the
performance objectives set forth on Schedule I, attached hereto, provided that
Grantee has been continuously employed with the Company through
________________.
(b) Death;
Disability; Retirement.
Unless
the Committee shall otherwise determine, upon the death of Grantee while
employed by the Company or the termination of Grantee’s employment due to his
Disability or Retirement prior to the last day of the Performance Period, the
Performance Stock Units shall be deemed to have achieved a target-level of
performance and shall become vested and nonforfeitable, and restrictions thereon
shall lapse, in such number of Performance Stock Units (rounded up to the next
integer) as equals the fraction the numerator of which is the number of days
from the Grant Date through the date of such employment termination and the
denominator of which is the number of days constituting the Performance
Period.
(c) Other
Terminations.
Unless
the Committee shall otherwise determine, upon a termination of Grantee’s
employment for any reason, other than due to Grantee’s death, Disability or
Retirement, prior to the last day of the Performance Period, the Performance
Stock Units shall be forfeited. Any forfeited Performance Stock Units shall
be
automatically immediately cancelled and shall terminate.
(d) Change
in Control.
In the
event that on or after a Change in Control Grantee’s employment is terminated
(i) by the Company other than for just cause (as defined under Section 12(b)(ii)
of the Plan) or (ii) by Grantee because Grantee in good faith believes that
as a
result of such Change in Control Grantee is unable effectively to discharge
his
duties or the duties of the position he occupied immediately prior to such
Change in Control or because of diminution in his aggregate compensation or
in
his aggregate benefits below that are in effect immediately prior to such Change
in Control, the Performance Stock Units shall be deemed to have achieved a
maximum-level of performance and shall become vested and nonforfeitable, and
restrictions thereon shall lapse, in such number of Performance Stock Units
(rounded up to the next integer) as equals the fraction the numerator of which
is the number of days from the Grant Date through the date of such employment
termination and the denominator of which is the number of days constituting
the
Performance Period. Any involuntary termination of Grantee’s employment by the
Company, other than for just cause, within 90 days prior to a Change in Control
but at the direction of any third party participating in or causing the Change
in Control or otherwise in contemplation of the Change in Control shall be
deemed a termination of Grantee’s employment under clause (i),
above.
(e) Contrary
Other Agreement.
The
provisions of Section
3(b)
to the
contrary notwithstanding, if Grantee and the Company have entered into an
employment or other agreement which provides for earning of performance stock
units and vesting treatment upon a termination of Grantee’s employment with the
Company (and all Affiliates) that is inconsistent with the provisions of
Section
3(b),
the
more favorable to Grantee of the terms of (i) such employment or other agreement
and (ii) this Agreement, shall control; provided, if such agreement addresses
only an element of time-vesting upon such employment termination, then Grantee’s
Performance Stock Units shall be subject to the attainment of the performance
objectives set forth on Schedule I hereto at achievement of target-level (or
greater) performance through the last day of the Performance Period, as a
condition of the right to and amount of payment of Performance Stock Units
hereunder, which shall not be payable until after the last day of the
Performance Period.
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(f) Payment
on Vesting.
To the
extent earned and vested, Performance Stock Units shall be paid to Grantee
as
provided at Section
4
hereof.
4. Delivery
of Shares.
(a) Issuance
of Shares.
As soon
as may be practicable after the last day of the Performance Period, but not
later than the March 15th following the December 31st of the calendar year
in
which the Performance Period ends, the Company shall cause its transfer agent
for the Common Stock to register shares in book-entry form in the name of the
Grantee (or, in the discretion of the Committee, issue to Grantee a stock
certificate) representing a number of shares of Common Stock equal to the number
of Performance Stock Units then earned and vested pursuant to Section
3
and the
attainment of the performance objectives set forth in Schedule I; provided,
such
issuance shall be deferred until the first such later date after vesting as
may
be required to comply with the provisions of Section 409A of the
Code.
(b) Withholding
Taxes.
At the
time shares of Common Stock are issued to Grantee, the Company shall satisfy
the
minimum statutory Federal, state and local withholding tax obligation (including
the FICA and Medicare tax obligation) required by law with respect to the
distribution of shares from one or more of the following methods, as determined
by the Committee: (i) the Company shall withhold cash compensation then accrued
and payable to Grantee of such required withholding amount, (ii) Grantee may
tender a check or other payment of cash to the Company of such required
withholding amount, or (iii) by withholding from shares issuable to Grantee
hereunder having an aggregate Fair Market Value equal to the amount of such
required withholding.
5. No
Transfer or Assignment of Performance Stock Units; Restrictions on
Sale.
Except
as otherwise provided in this Agreement, the Performance Stock Units and the
rights and privileges conferred thereby shall not be sold, pledged or otherwise
transferred (whether by operation of law or otherwise) and shall not be subject
to sale under execution, attachment, levy or similar process until the shares
of
Common Stock represented by the Performance Stock Units are delivered to Grantee
or his designated representative. The Grantee shall not sell any shares of
Common Stock at any time when applicable laws or Company policies prohibit
a
sale. This restriction shall apply as long as Grantee is an Employee of the
Company or an Affiliate of the Company.
6. Legality
of Initial Issuance.
No
shares of Common Stock shall be issued unless and until the Company has
determined that (a) any applicable listing requirement of any stock exchange
or
other securities market on which the Common Stock is listed has been satisfied;
and (b) all other applicable provisions of state or federal law have been
satisfied.
7. Miscellaneous
Provisions.
(a) Rights
as a Stockholder.
Neither
Grantee nor Grantee’s representative shall have any rights as a stockholder with
respect to any shares underlying the Performance Stock Units until the date
that
the Company is obligated to deliver such shares of Common Stock to Grantee
or
Grantee’s representative.
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(b) Dividend
Equivalents.
As of
each dividend date with respect to shares of Common Stock, an unvested dividend
equivalent shall be awarded to Grantee in the dollar amount equal to the amount
of the dividend that would have been paid on the number of shares of Common
Stock equal to the number of Performance Stock Units held by Grantee as of
the
close of business on the record date for such dividend. Such dividend equivalent
amount shall be converted into a number of Performance Stock Units equal to
the
number of whole and fractional shares of Common Stock that could have been
purchased at the closing price on the dividend payment date with such dollar
amount. In the case of any dividend declared on shares of Common Stock which
is
payable in shares of Common Stock, Grantee shall be awarded an unvested dividend
equivalent of an additional number of Performance Stock Units equal to the
product of (x) the number of his Performance Stock Units then held on the
related dividend record date multiplied by the (y) the number of shares of
Common Stock (including any fraction thereof) distributable as a dividend on
a
share of Common Stock. All such dividend equivalents credited to Grantee shall
be added to and in all respects thereafter be treated as Performance Stock
Units
hereunder.
(c) No
Retention Rights.
Nothing
in this Agreement shall confer upon Grantee any right to continue in the
employment or service of the Company for any period of specific duration or
interfere with or otherwise restrict in any way the rights of the Company or
of
Grantee, which rights are hereby expressly reserved by each, to terminate his
employment or service at any time and for any reason, with or without
Cause.
(d) Inconsistency.
To the
extent any terms and conditions herein conflict with the terms and conditions
of
the Plan, the terms and conditions of the Plan shall control.
(e) Notices.
Any
notice required by the terms of this Agreement shall be given in writing and
shall be deemed effective upon personal delivery, upon deposit with the United
States Postal Service, by registered or certified mail, with postage and fees
prepaid or upon deposit with a reputable overnight courier. Notice shall be
addressed to the Company at its principal executive office and to Grantee at
the
address that he most recently provided to the Company.
(f) Entire
Agreement; Amendment; Waiver.
This
Agreement constitutes the entire agreement between the parties hereto with
regard to the subject matter hereof. This Agreement supersedes any other
agreements, representations or understandings (whether oral or written and
whether express or implied) which relate to the subject matter hereof. No
alteration or modification of this Agreement shall be valid except by a
subsequent written instrument executed by the parties hereto. No provision
of
this Agreement may be waived except by a writing executed and delivered by
the
party sought to be charged. Any such written waiver will be effective only
with
respect to the event or circumstance described therein and not with respect
to
any other event or circumstance, unless such waiver expressly provides to the
contrary.
(g) Choice
of Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Illinois, as such laws are applied to contracts entered into and
performed in such State, without giving effect to the choice of law provisions
thereof.
(h) Successors.
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(i) This
Agreement is personal to Grantee and, except as otherwise provided in
Section 5
above,
shall not be assignable by Grantee otherwise than by will or the laws of descent
and distribution, without the written consent of the Company. This Agreement
shall inure to the benefit of and be enforceable by Grantee’s legal
representatives.
(ii) This
Agreement shall inure to the benefit of and be binding upon Company and its
successors.
(i) Severability.
If any
provision of this Agreement for any reason should be found by any court of
competent jurisdiction to be invalid, illegal or unenforceable, in whole or
in
part, such declaration shall not affect the validity, legality or enforceability
of any remaining provision or portion thereof, which remaining provision or
portion thereof shall remain in full force and effect as if this Agreement
had
been adopted with the invalid, illegal or unenforceable provision or portion
thereof eliminated.
(j) Headings.
The
headings, captions and arrangements utilized in this Agreement shall not be
construed to limit or modify the terms or meaning of this
Agreement.
(k) Counterparts.
This
Agreement may be executed simultaneously in one or more counterparts, each
of
which shall be deemed an original, but all of which shall constitute but one
and
the same instrument.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
and year first written above.
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ACCO
BRANDS CORPORATION
By:___________________________________________
Name:_________________________________________
Its:___________________________________________
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|
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________________________________________
Grantee
Name
________________________________________
Grantee
Signature
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SCHEDULE
I
[Insert
Performance Objectives to Earn PSU Award and the Percentage of the Award earned,
assuming a “threshold,” “target” and “maximum” scheme, and interpolated scale
within, is intended in the design]
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